Second Circuit Hints It May Affirm a Non-Guidelines Sentence Based on Fast-Track Sentencing Disparity

Hours after I wrote yesterday's post that the Supreme Court's decision in Kimbrough does not have as much universal application as Gall, the Second Circuit issued United States v. Liriano-Blanco, 2007 WL 4302708 (2d Cir. December 11, 2007), a case that appears to fall smack within the realm of Kimbrough's holding - that a district court may decline to uphold a disparity in the Sentencing Guidelines that does not reflect considered, statistical and rational analysis by the Sentencing Commission.

In Liriano-Blanco, the Second Circuit remanded for reconsideration of the sentence based on the narrow point that the district court appeared to have imposed its within-Guidelines sentence under a mistaken belief that the defendant could appeal it. Since the defendant had in fact waived his right to appeal, the Court reversed to give the district court an opportunity to reconsider its decision not to impose a more lenient sentence (and chided the government for not pointing out to the district court its error).

Of interest here is the fact that the district court had indicated a willingness to impose a below-Guidelines sentence because the defendant was adversely impacted by "fast track program" disparities, but declined to do so on a belief that he was not empowered to grant such a variance. In certain districts, defendants receive a four-point adjustment under U.S.S.G. § 5K3.1 for participation in early disposition or fast-track programs. Unfortunately for Liriano-Blano, a fast-track program does not exist in the NDNY, or indeed, any district in the Second Circuit.

In United States v. Mejia, 461 F.3d 158 (2d Cir. 2006), the Second Circuit had joined other circuits in holding that "a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable.” Notably, in Mejia, the Court did not address the question presented in Liriano-Blanco: whether the district court has the authority to impose a non-Guidelines sentence in response to the fast-track sentencing disparity if, as in Liriano-Blanco, it deems such a reduced sentence to be warranted. In Liriano-Blano, the Court did not answer this question either but tantalizingly notes that Mehia did not "foreclose the possibility that a court has the legal authority to impose, in its discretion, a non-Guidelines sentence on that basis [i.e. fast-track disparities]."

Since fast-track programs constitute disparities that clearly do not "exemplify the [Sentencing] Commission's exercise of its characteristic institutional role" since they are not based on "empirical data and national experience," Kimbrough v. United States, 2007 WL 4292040at *14, both the Supreme Court's holding in Kimbrough and the Second Circuit's hints in Liriano-Blanco may just provide Liriano-Blanco - and others similarly adversely affected by fast-track disparities - with his get-four-points-off-free card.